State v. Guinard

State v. Guinard  (98-153); 169 Vt. 555; 726 A.2d 88

[Filed 11-Feb-1999]

                                 ENTRY ORDER

                       SUPREME COURT DOCKET NO. 98-153

                             JANUARY TERM, 1999


State of Vermont	              }	APPEALED FROM:
                                      }
                                      }
     v.	                              }	Vermont District Court
                                      }	Unit No. 1, Windsor Circuit
Tammie Guinard	                      }
                                      }	DOCKET NO. 141-02-93 WrCr	


       In the above-entitled cause, the Clerk will enter:

       Defendant Tammie Guinard appeals the district court's revocation of
  her deferred sentence and  imposition of a fully suspended sentence of
  zero-to-one year for failure to pay restitution for a  welfare fraud
  conviction.  Defendant claims that (1) her probation officer exceeded his
  authority  by requiring her to pay restitution in the amount of fifty
  dollars per month when the court's order  fixing the total amount of
  restitution did not specify any manner of performance, and (2) the court 
  violated defendant's rights to due process of law and equal protection by
  revoking her deferred  sentence for failure to pay restitution, without
  evidence or findings that she had the ability to pay.  We reverse and
  remand on the first issue and do not need to reach the second issue.

       Defendant pleaded guilty to a charge of welfare fraud in violation of
  33 V.S.A. § 141, and was  placed on a deferred sentence for five years,
  from October 5, 1993 until October 5, 1998.  The  only condition placed on
  defendant by the district court was that she pay restitution to the 
  Department of Social Welfare in the amount of $3,764.00.    

       Defendant thereafter entered into a restitution payment contract with
  her probation officer.  The  signed agreement stated that defendant would
  make payments of at least fifty dollars each month  until the entire amount
  of court-ordered restitution was paid.  Moreover, the agreement contained 
  language which acknowledged that if defendant missed the agreed-to payment
  schedule, she would  be in violation of her probation.  Subsequently,
  defendant signed similar agreements over the  ensuing three and one-half
  years, the most recent being in December, 1996.  During the entire  time,
  defendant continued receiving benefits through an
  aid-to-needy-families-with-children grant  from which periodic recoupments
  were deducted by the Department of Social Welfare to pay  towards
  defendant's restitution.    


 


       After about one-half of the restitution had been paid, defendant's
  probation officer filed a  probation violation complaint alleging that
  defendant had violated a condition of probation by  failing to pay
  restitution to the Department of Social Welfare.  The affidavit portion of
  the  violation of probation complaint indicated that defendant's last
  payment of fifty dollars was made  four months earlier.

       The court found defendant in violation of her probation by failing to
  make all of the fifty dollar  monthly payments, determining that the
  agreements signed by defendant with the probation  department were binding
  on the parties.  Further, the court determined that defendant's condition 
  of probation, to pay $3,764.00 in restitution over the five year period,
  was not modified by the  agreements, because no new condition was added. 
  Finally, the court concluded that even if the  probation agreements
  modified the condition of probation, the agreements were enforceable 
  because defendant had consented to them.  The court sentenced defendant to
  a fully suspended  term of one year, with the condition that she pay
  restitution of twenty dollars per month until her  remaining debt was paid,
  with the option of paying off some of the amount through community 
  service.  

       Under 28 V.S.A. § 252(b)(6), restitution may be made a condition of a
  criminal defendant's  probation.  The statute requires, however, that in
  making restitution a condition of the sentence,  the court "shall fix the
  amount thereof, which shall not exceed an amount the defendant can or  will
  be able to pay, and shall fix the manner of performance."  Id. (emphasis
  added).  In State v.  Benoit, we determined that, under 28 V.S.A. §
  252(b)(6), the court must determine at sentencing  the amount that
  defendant can or will be able to pay and the manner of performance.  See
  State  v. Benoit, 131 Vt. 631, 635, 313 A.2d 387, 389 (1973).  

       The record before us discloses that restitution was ordered in the
  amount of $3,764.00.  No  manner of performance is apparent from the court
  order.  The statute is clear and unambiguous  that the manner of
  performance is to be set by the court.  Even though defendant signed an 
  agreement for the manner of payment with her probation officer, the statute
  does not provide that  "the manner of performance" is a duty the court may
  delegate to the probation department.  See  id. (decision on manner of
  performance for restitution must be made by court upon evidence  presented
  at sentencing); 28 V.S.A. § 252(b)(6) (if restitution is a condition of
  sentence, manner  of performance shall be fixed by court).  

       This is not to say that the court may not delegate in the first
  instance the task of determining the  amount of installments to defendant's
  probation officer as changing circumstances indicate.  Any  disagreement
  over ability to pay, however, must be decided by the court.  In this case,
  nothing  was delegated to the probation officer to determine.  The order
  simply ordered restitution within  a time frame and said nothing about
  installments.  We reverse the finding of a 


 

  violation of probation and remand for a modification of the court's
  probation conditions to fit the  present circumstances.


       Reversed and remanded. 


BY THE COURT:



_______________________________________
Jeffrey L. Amestoy, Chief Justice

_______________________________________
John A. Dooley, Associate Justice

_______________________________________
James L. Morse, Associate Justice

_______________________________________
Denise R. Johnson, Associate Justice

_______________________________________
Marilyn S. Skoglund, Associate Justice